remanded EB-1C Case: Software And It Services

U.S. Citizenship 
and Immigration 
Services 
In Re: 9780707 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEPT. 24, 2020 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner, an "e-business" that provides on-site software and IT services to oil and gas companies, 
seeks to permanently employ the Beneficiary as its president under the first preference immigrant 
classification for multinational executives or managers. See Immigration and Nationality Act (the 
Act) section 203(b)(l)(C), 8 U.S.C. § 1153(b)(l)(C). This classification allows a U.S. employer to 
permanently transfer a qualified foreign employee to the United States to work in an executive or 
managerial capacity. 
The Director of the Texas Service Center denied the petition concluding that the Petitioner did not 
establish, as required, that the Beneficiary was employed abroad in a managerial or executive capacity. 
The Director also entered a separate finding of fraud or willful misrepresentation of a material fact. 
The matter is now before us on appeal. In these proceedings , it is the Petitioner 's burden to establish 
eligibility for the requested benefit. Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, 
we conclude that the decision lacks an analysis of the Beneficiary's foreign employment claim, thereby 
denying the Petitioner a meaningful opportunity to challenge the Director's finding of ineligibility . 
We also conclude that the Director did not provide an adequate analysis to support the finding of fraud 
or willful misrepresentation of a material fact. Therefore, we will withdraw the Director's decision 
and remand the matter for further proceedings. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three years preceding the filing of the 
petition, has been employed outside the United States for at least one year in a managerial or executive 
capacity, and seeks to enter the United States in order to continue to render managerial or executive 
services to the same employer or to its subsidiary or affiliate. Section 203(b)(l)(C) of the Act. 
The Form 1-140, Immigrant Petition for Alien Worker, must include a statement from an authorized 
official of the petitioning United States employer which demonstrates that the beneficiary has been 
employed abroad in a managerial or executive capacity for at least one year in the three years preceding 
the filing of the petition, that the beneficiary is coming to work in the United States for the same 
employer or a subsidiary or affiliate of the foreign employer, and that the prospective U.S. employer 
has been doing business for at least one year. See 8 C.F.R. § 204.5(j)(3). 
II. ANALYSIS 
As noted earlier, we conclude that the Director's decision did not adequately explain the deficiencies 
in the evidence. See 8 C.F.R. § 103.3(a)(l)(i); see also Matter of M-P-, 20 I&N Dec. 786 (BIA 1994) 
(finding that a decision must folly explain the reasons for denying a motion to allow the respondent a 
meaningful opportunity to challenge the determination on appeal). As the Petitioner correctly points 
out on appeal, despite issuing a notice titled "Decision," the Director confusingly allowed the 
Petitioner 33 days to submit additional evidence regarding the Beneficiary's employment abroad and 
used phrases like "USCIS intends to deny" and "this Notice of Intent to Deny" in reference to the 
notice. Therefore, it was unclear whether the effect of the "Decision" was to deny the petition or to 
inform the Petitioner that a denial would be forthcoming at a future time, pending the Petitioner's 
submission of a response to the notice. The Director also reiterated incorrect information about the 
Beneficiary's proposed job location, even though the Petitioner pointed to the error and provided the 
correct information in response to previously issued notice of intent to deny (NOID). 
Next, the Director laid out the elements of material misrepresentation and stated that "USCIS intends 
to enter a finding of willful misrepresentation of a material fact against the beneficiary." However, 
the Director also determined that the Beneficiary "misrepresented material facts committed fraud," 
thereby conflating fraud and willful misrepresentation, despite acknowledging that a finding ofwillfol 
misrepresentation is not synonymous with a finding of fraud. 1 The Director did not explain or provide 
an analysis for finding that the Beneficiary "misrepresented material facts committed fraud." 
Further, the Director noted that the Petitioner signed the petition "under penalty of perjury" and 
acknowledged the Petitioner's "legal responsibility for the truth an accuracy" of the information 
contained in that petition. However, the Director did not explain the relevance of this information to 
the matter at hand, thereby leading us to question whether the Director intended to enter a separate 
finding of fraud or willful misrepresentation against the Petitioner. In addition, the record shows that 
the Director previously issued a NOID that raised concerns about the validity of the Beneficiary's 
foreign employment claim because of inconsistencies between that claim and information the 
Beneficiary provided in a 2012 nonimmigrant visa application regarding her education and 
employment history. Although the Petitioner offered additional evidence in response to that NOID, 
the Director did not discuss that evidence in the denial or explain why such evidence did not overcome 
the noted inconsistencies. 
1 The Director stated that for an immigration officer to find a willful and material misrepresentation in visa petition 
proceedings, he or she must determine: 1) that the petitioner or beneficiary made a false representation to an authorized 
official of the United States government; 2) that the misrepresentation was willfully made; and 3) that the fact 
misrepresented was material. See Matter of M-, 6 I&N Dec. 149 (BIA 1954); Matter<lL-L-, 9 I&N Dec. 324 (BIA 1961); 
Matter of Kai Hing Hui, 15 I&N Dec. at 288. The Director further stated that a finding of fraud requires a determination 
that the alien made a false representation of a material fact with knowledge of its falsity and with the intent to deceive an 
immigration officer. Furthermore, the false representation must have been believed and acted upon by the officer. See 
Matter of G-G-, 7 l&N Dec. 161 (BIA 1956). 
2 
In light of the deficiencies described above, we hereby withdraw the Director's decision and remand 
the matter so that the Director can properly consider the evidence and evaluate the validity of the 
Petitioner's claims. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for farther 
proceedings consistent with the foregoing opinion and for the entry of a new decision. 
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